A federal judge in Portland has raised doubts about the U.S. attorney's ability to use gun laws to combat domestic violence in Maine.

U.S. District Court Judge D. Brock Hornby dismissed the federal felony indictment last week of a Lewiston man who was facing a prison sentence on the charge of possessing a gun after being convicted of a misdemeanor domestic assault crime.

Hornby ruled that John Frechette did not knowingly waive his right to a jury trial in 1996, when he pleaded "no contest" to the assault charge, because, like most misdemeanor defendants in Maine, Frechette was informed of his rights at a group arraignment.

According to Hornby, that means Frechette's conviction does not meet the standards for the federal gun possession crime. The ruling casts doubt on the ability of federal prosecutors to bring similar charges against others who had pleaded guilty to domestic violence offenses after group arraignments.

The government will hold off on those prosecutions while it appeals Hornby's decision, said First Assistant U.S. Attorney William Browder.

"It is a detour in the road, but we think we will succeed on appeal," Browder said. "We see it as a setback, but we will continue to be very aggressive in these cases."

Over the past four years, 125 people have been prosecuted on federal gun possession charges related to domestic violence cases in Maine. Browder said that makes the District of Maine the leader among all federal court districts in the country, prosecuting more of those cases than more populous districts with higher crime rates.

Using funds from the federal "Project Safe Neighborhoods" program, U.S. Attorney Paula Silsby has hired a dedicated prosecutor for gun cases. The program has won the backing of domestic violence victims groups and gun control advocates.

They expressed dismay over the ruling.

"That is really unfortunate because our U.S. attorney has been an outstanding enforcer of the statute. We are sorry to see her handcuffed on this issue," said Lois Reckitt, executive director of Family Crisis Services.

"This is a good law that recognized that a majority of Maine homicides are caused by domestic violence and involve guns," said Cathie Wittenberg, of Maine Citizens Against Handgun Violence. "People need to know that if you make a decision to beat your wife, you are also making a decision not to own guns."

Under Maine law, convicted felons are the only adults prohibited from having guns. But under federal law, there are eight other categories, including anyone under a protection from abuse order or people who have been convicted of a misdemeanor crime of domestic violence.

That law was passed in 1999, meaning many Maine residents are permanently ineligible to have a firearm even if they don't know about the ban. Some, like Frechette were convicted before there was a law.

In 1996, Frechette was a laid-off factory worker with an eighth-grade education, said his lawyer J.P. DeGrinney.

Frechette called the police to charge his then-girlfriend with assault, but he was arrested instead, DeGrinney said. In court, Frechette was denied a court-appointed lawyer, and pleaded "no contest" to resolve his case. He was sentenced to serve probation.

Eight years later, Frechette was married to a different woman, DeGrinney said. In the intervening years he'd had no domestic violence charges, and only traffic offenses on his record. But when his wife's car was repossessed, a .22 caliber handgun was found under the driver's seat. Frechette admitted to police that he sometimes used it for target shooting, and was charged with a federal felony.

DeGrinney argued that Frechette's original conviction should not count because at the time he waived his right to a jury trial, he was not fully advised of the consequences of his actions.

"People plead guilty for a lot of reasons," DeGrinney said. "Usually it's because they are guilty, but sometimes it's because they can't afford the cost of a trial, or because they are petrified of the process."

Frechette thought he was putting an end to his legal troubles by entering a plea, DeGrinney said.

State district court judges often need to find ways to move large numbers of people charged with minor crimes quickly through the system. Defendants are often instructed of their rights as a group, or with a video. In felony cases, group instructions are not considered adequate, but misdemeanors are rarely appealed, so the rules are less defined.

Hornby said he read a transcript of Frechette's arraignment.

"It is plain that Frechette was not individually advised of his right to a jury trial . . ." Hornby wrote. "I concluded that he did not knowingly and intelligently waive his right."

If Hornby's ruling stands, judges might have to question defendants individually at the time they enter pleas.

That is a "big deal," said criminal defense attorney Robert Ruffner.

"It will affect the way uncounseled pleas are done in Maine," Ruffner said. "Prosecutors will have to say, 'if we are not going to be sure that they knew that they were giving up their rights we're not going to be able to bring those cases.' "

Browder said that it was too early to say what the impact would be.

If the government's appeal is unsuccessful, he said, federal and state officials would work together to continue the prosecutions.

"I would venture to guess that if we had to, we could work with the state courts to create a process that would pass muster," he said. "We're all committed to do everything we can to address domestic violence."

"This is a good law that recognized that a majority of Maine homicides are caused by domestic violence and involve guns," said Cathie Wittenberg, of Maine Citizens Against Handgun Violence. "People need to know that if you make a decision to beat your wife, you are also making a decision not to own guns."

Then this gun-grabbing harridan should have no objection to plea instructions informing the accused that a guilty plea means that they will never legally own a gun again, and if they are found with a gun, they will go to jail.

What a lot of men do not realize, is that if a woman obtains a civil order for protection from domestic violence (which are NEVER heard before juries and usually most guys just agree to the entry of the order rather than fight it in court), under federal law, the man loses his constitutional right to keep and bear arms, as far as the federal and state law goes. If you get caught with a gun (hunting rifle, pistol, whatever) and there is an Order for Protection from DV with your name on it, you will be arrested and charged with a crime and your gun(s) confiscated. Argue that it is "unconstitutional" all you want, the cop isn't gonna listen to you. And, the court will not be sympathetic. Prosecutors go after DV cases with a vengeance, and the courts back them up almost every time.

And, what do the courts and "women's advocates" consider to be "domestic violence." They all use what is called the "Wheel of Violence" (see below). Pick a spoke on the wheel, if you are a MAN and you do any of the acts on the spokes, you are a DV perpetrator:

Notice that "Using Male Privilege" has its very own spoke on the wheel, i.e.: "Making all the big decisions," "acting like the 'master of the castle,'" etc.

I'm still waiting for our "conservative" congress to repeal a law, any law, to show they believe in "small" government. This idiotic law would be a good start. I'll watch the pyramids crumble while waiting.

6
posted on 06/20/2005 12:00:13 PM PDT
by sergeantdave
(Marxism has not only failed to promote human freedom, it has failed to produce food)

Unless something about federal law regarding the VAWA has changed, if a man with a restraining order against him (routine for such orders to be permanent in some jurisdictions to make sure that sole custody of children stays with women) is caught possessing firearms or ammunition, he gets a mandatory federal prison sentence.

Everyone should lose their Second Amendment freedoms until the VAWA is repealed. Everyone should also be subject to debtors' prisons until the so-called (and revenue guzzling) Child Support Act is repealed. Violation of our Constitution is a real crime, IMO.

In most cases, no, they don't. And men, lacking the education in feminism that most women get in various schools and other institutions and who most often enter marriage with more old-fashioned intentions in mind, won't accuse their wives of domestic violence. BTW, almost all of the police around a municipal I once worked for were not married and did frequently hear speeches from the most radical local feminists (domestic violence advocates who were women's studies graduates and the like). ...same with the local judges and other lawyers. It's been going on for a long time.

DeGrinney argued that Frechette's original conviction should not count because at the time he waived his right to a jury trial, he was not fully advised of the consequences of his actions.

How can the fact that he wasn't sufficiently informed of consequences that weren't even passed into law yet have legal relevance?? Remember, the federal law was passed AFTER he plead. OTOH, the ex post facto aspect of this and similar laws is already a problem in its own right, anyway.

12
posted on 06/20/2005 2:55:57 PM PDT
by Still Thinking
(Disregard the law of unintended consequences at your own risk.)

A friend who has been a domestic violence victims' advocate for 6-7 years reports she's seen a jury return a DV conviction ONCE.

99 percent of the cases never go to a jury - to expensive/time consuming, and, if convicted, the time will be major, hence most men don't want to risk it - better to cop a plea, usually guilty with a suspended sentence (that's usually what the overworked public defenders recommend).

As far as a civil Order for Protection from Domestic Violence, the vast majority of those are issued against the male "perpetrator" and they are never heard by juries.

That circle is so sad. We have a domestic violence court that feeds on itself in Kansas City. It gets tons of money from every ticket fine and court costs. It has tens of thousands to spend. It must justify it's existence so the 95% female advocates and prosecutors try their hardest to break up relatively good marriages or relationships. About 10-15% of their work can be justified in my opinion. Some type of church oriented marriage counseling would be so welcome.

Disclaimer:
Opinions posted on Free Republic are those of the individual
posters and do not necessarily represent the opinion of Free Republic or its
management. All materials posted herein are protected by copyright law and the
exemption for fair use of copyrighted works.